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New Albany, Indiana – A copyright attorney for Broadcast Music, Inc. (“BMI”) of New York, New York filed a complaint for copyright infringement in the Southern District of Indiana, New Albany Division against Philkerr, LLC d/b/a Hardy’s Café and Steven Phillips, individually, both of Scottsburg, Indiana.

BMI asserts that it has been granted the right to license the public performance rights of approximately 8.5 million copyrighted musical compositions. In this Indiana copyright litigation, BMI alleges 15 counts of copyright infringement. In addition to Plaintiff BMI, this lawsuit was instituted on behalf of twenty-five other Plaintiffs. These Plaintiffs claim ownership to the copyrighted compositions at issue.

The Defendants in this lawsuit are Philkerr LLC and Steven Phillips, the owner of Philkerr. They are accused of having infringed the copyrights-in-suit by causing the unauthorized public performance of BMI members’ musical works at Hardy’s Café.

Through this lawsuit filed by their copyright lawyer, Plaintiffs ask for an injunction restraining Defendants from publicly performing Plaintiffs’ compositions without authorization from BMI and a judgment for statutory damages, attorney’s fees and the costs of the litigation.

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Chicago, Illinois – Richard Bell, an Indiana copyright attorney and professional photographer appealed a ruling by the United States District for the Southern District of Indiana, Indianapolis Division to the United States Court of Appeals for the Seventh Circuit. The Seventh Circuit dismissed the appeal for lack of jurisdiction.

In this copyright lawsuit, Bell, a repeat Plaintiff in the federal courts of Indiana, alleged copyright infringement by multiple Defendants in a lawsuit that he filed on his own behalf in the Southern District of Indiana. He asserted that each Defendant had impermissibly displayed a photo that he owns on websites promoting their respective businesses. His copyright infringement complaint sought both damages and an injunction prohibiting future use of the photo.

Defendants moved for summary judgment on the issue of damages. The district court found that Bell could not demonstrate how Defendants had caused him financial harm and, thus, Bell was entitled to no monetary recovery. After that ruling, the trial court issued a judgment against Bell, which Bell appealed to the Seventh Circuit.

The Seventh Circuit declined to hear the matter on the grounds that it lacked jurisdiction, noting that the district court had ruled on the issue of damages but not on the issue of injunctive relief. The appellate court would not have jurisdiction under 28 U.S.C. § 1291 until a “final decision” had been reached. In turn, such a “final decision” required that the litigation had been concluded on its merits.

Practice Tip: Bell’s approach here is curious. First, he appealed the district court’s ruling. Then, he apparently argued to the Seventh Circuit that his own appeal was premature because the district court’s judgment had not been final. As the appellate court noted, “Bell is correct: the court did not resolve his claims for injunctive relief. As such, the district court’s ruling was not final, and Bell’s appeal is premature.”

Practice Tip: Richard Bell has sued hundreds of defendants for copyright infringement in the Indiana federal courts. Previous blog posts regarding his litigation include:

• Bell Rings in the Holiday Weekend with a New Copyright Lawsuit
• Bell Files New Copyright Infringement Lawsuit
• Bell Sues Georgia-Base FindTicketsFast.com for Copyright Infringement
• Richard Bell Files Two New Copyright Infringement Lawsuits
• Court Prevents Copyright Plaintiff Bell from Outmaneuvering Legal System; Orders Bell to Pay Almost $34,000 in Fees and Costs
• Three Default Judgments of $2,500 Ordered for Copyright Infringement
• Court Orders Severance of Misjoined Copyright Infringement Complaint

• Richard Bell Files Another Copyright Infringement Lawsuit

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Asked about the recent rise in lawsuits concerning PayTV events in bars and restaurants, I was quoted as follows:

“In my experience they tend to be owners of really small establishments,” Paul B. Overhauser, an attorney in Indianapolis who has represented hundreds of restaurants in piracy cases, said in an interview. “If there is a default judgment, it’s probably because the bar owner couldn’t afford an attorney.”

Overhauser said the sports promoters use the amount of those default judgments in pressuring other owners to settle. “They’ll say, ‘You better settle with us right away for $10,000 because this other one paid $150,000,'” he said. “If you’re a business owner and you get a letter like that, it’s pretty compelling if you don’t have a lawyer.”

Indianapolis, IN – Trademark attorneys for Australian Gold, LLC of Indianapolis, Indiana filed a lawsuit in the Southern District of Indiana against Ruelala Incorporated of Boston, Massachusetts seeking a declaration of non-infringement of the trademark RUE LA LA. Ruelala has registered trademark no. 3,484,375 and 3,484,376 while Australian Gold has a pending trademark Application No. 85/227,366 with the US Trademark Office.

Australian Gold alleges that it received a cease-and-desist letter from Ruelala, demanding that Australian immediately cease using the Rue La La mark. The complaint states that Australian sells a “tanning preparation product” for use in indoor tanning facilities under the name RUE LA LA. It is alleged that Ruelala operates a “private sale event website” that offers limited time sales on various consumer products, rather it is alleged that the products sold are “high-end third-party products.” Australian Gold states that none of the products sold by Ruelala are named RUE LA LA. Australian claims that no customers are confused by the co-existence of Australian Gold’s product and Ruelala’s service. Australian now seeks a declaratory judgment of non-infringement and no unfair competition based upon Ruelala’s threats of litigation.

Practice Tip: It appears from the complaint that Australian and Ruelala’s uses of the mark are in entirely unrelated lines of business. Ruelala will have to show that the products offered are sufficiently similar to create a likelihood of confusion. It is also interesting that Australian Gold alleges it has used the mark since November 2011. The complaint states that Ruelala applied for its trademarks in September 2010.
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Indianapolis and Hammond, Indiana — Indiana’s federal district courts have recently amended their local rules. Some of the recent changes have implications for Indiana intellectual property attorneys filing patent, trademark, and copyright lawsuits.

Effective January 1, 2011, the Southern District Court of Indiana amended its discovery rules to “encourage informal resolution of discovery disputes, including disputes that might otherwise derail a deposition.” Specifically, Local Rule 37.1 is amended to require that if attorneys’ good faith efforts to resolve a discovery dispute are unsuccessful, attorneys “are encouraged” to contact the Magistrate’s office for assistance in resolving the dispute by telephone or other informal methods. If this conference does not resolve the dispute, the amended rule allows counsel to file motions raising the dispute. The motion must recite the efforts to resolve the dispute in the motion, rather than the prior rule’s requirement of a separate statement discussing these efforts. Effective January 1, 2011, Local Rule 37.3, “Mode of Raising Discovery Dispute with the Court,” is deleted.

The Southern District Court of Indiana also amended Local Rule 83.7 to require that an attorney’s motion to withdraw include the client’s contact information. Local Rule 23.1, regarding class action lawsuits, was deleted to eliminate the 90-day waiting deadline for certification of a class.

Fort Wayne, Indiana – Trademark attorneys for J.B. Custom, Inc. of Huntertown, IN, have filed suit against, among others, Amadeo Rossi S.A. of Brazil and Taurus International Manufacturing of Miami, FL, alleging that the defendants have unlawfully made, advertised, imported, and/or sold firearms using trade names and designs owned by the plaintiff.

The plaintiff is a custom firearm manufacturer who previously contracted with the defendant Rossi for the manufacture and distribution of firearms designed by plaintiff, with the plaintiff to have exclusive distribution rights in the United States. The complaint alleges that Rossi has advertised in an American magazine a firearm of the plaintiff’s design which breaches the contract, infringes plaintiff’s trademark rights in the design, and infringes plaintiff’s Trademark Registration No. 3,654,700 for the word mark MARE’S LEG, as registered by the U.S. Trademark Officein connection with the custom manufacturing of firearms and accessories.

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The US Trademark Office issued the following 175 trademark registrations to persons and businesses in Indiana in August, 2010, based on applications filed by Indiana Trademark Attorneys:

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Hammond, Indiana – Intellectual property counsel for J & J Sports Productions, Inc., of Campbell, CA, filed a lawsuit alleging Copper Penny Pub (and its owner Steve Hekkel) of Hammond, IN, improperly exhibited the Floyd Mayweather-Shane Moseley boxing match earlier this year. The plaintiff claims to hold the rights to distribute the broadcast of the fight and that the defendants “unlawfully intercepted, received and/or de-scrambled” the satellite signal of the broadcast and publicly showed it at the Copper Penny sports bar in Hammond. Violations of 47 U.S.C. §§ 553 and 605(a), which prohibit unauthorized reception and use of satellite and cable system transmissions, are asserted.

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Starting January 1, 2008, Indiana-based technology companies can now take advantage of a tax exemption for revenues from patents issued after January 1, 2008. Indiana is the first state to offer this type of exemption.

The exemption applies to license fees, royalties and receipts from licensing or sale of a “qualified patent.” A “qualified patent” is US utility or plant issued after December 31, 2007, for an invention “resulting from a development process conducted in Indiana.”

Any technology-based busienss, especially software companies whose predominant revenue source is license fees, should consider seeking patent protection for their products.  This could allow them to take advantage of this significant exemption from revenue.

Small businesses with fewer than 500 employees and affiliates that receive patents after 2007 may exempt up to half of the income they receive from using the patents for the first five years. The exemption tapers off in subsequent years, and expires after 10 years.

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